by Centre for Policy Analysis, December 10, 2016
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Sri Lanka: A Review for Human Rights Day 2016
Human Rights Day (December 10th) gives us an opportunity to reflect on the successes and more importantly, the failures in addressing human rights-related issues in Sri Lanka, and to hopefully use this evaluation as a guideline for the years ahead.
This is not an exhaustive overview but provides an insight into issues that have been addressed over the course of 2016 and how much still needs to be done towards realising greater promotion of human rights for all Sri Lankan citizens.
The passage of legislation to establish an Office of Missing Persons
The OMP will bring about the first permanent independent entity to address the issue of missing persons in Sri Lanka. Previously, the government-appointed Paranagama Commission heard testimonies of families of the disappeared across the island, recording cases in the thousands of individuals who have gone missing during and even before the conflict.
The new bill provides the OMP with the following functions:
- Provide status reports on ongoing investigations to the family as long as it does not hinder the investigation.
- Establish a system for the protection of victims and witnesses coming before the OMP.
- Create, manage, and maintain a database with regards to missing persons.
The OMP can also make recommendations on the following: prevention of future disappearances, ways of commemorating and acknowledging those missing, publishing information relevant to a missing person, development of relevant laws and regulations, reparations, and the handling of unidentifiable and identifiable remains. The findings from investigations done by the OMP will not give rise to criminal or civil liability.
The legislation was passed in August yet to date, the office has not been set up.
The passage of the Right to Information Act
The main purpose of the Right to Information Bill is to specify grounds on which access may be denied, to establish the Right to Information commission, to appoint Information Officers and to set out the procedure and for matters connected with it. The Act provides the mechanism by which every citizen will be able to access information which is in the possession, custody or control of a public authority.
Ministries, departments, public corporations, local authorities, non-governmental organizations that are substantially funded by the government, higher educational institutions, courts and tribunals etc. should provide access to information and shall maintain records.
The introduction of the Right to Information Act was a key pledge in the 100-day work program of the government. The provisions of the Act can come into operation as early as February 4th 2017.
The Prevention of Terrorism Act and the Counter-terrorism Act
There has been push from civil society and the international community for several years to repeal the Prevention of Terrorism Act (PTA) and in 2015, the Government of Sri Lanka in a historic co-sponsored resolution at the United Nations Human Rights Council promised that it would replace the PTA with a counter-terrorism law that complies with international best practices.
The PTA is tirelessly referred to as draconian and has even been used to prosecute human rights defenders, journalists and political opponents of the state. However, a draft of the Counter-terrorism Act (CTA) intended to replace the PTA has been met with criticism too as experts have pointed out clauses where the draft legislation is as harsh as that which it is supposed to be replacing.
- The denial of prompt access to legal counsel – no access to lawyer until first statement is recorded or 48 hours after arrest.
- The admissibility of confessions potentially obtained through torture; the burden of proof is on the prosecutor to prove voluntary confession, as opposed to the PTA which puts burden on the person giving evidence to prove coercion.
- Criminalisation of speech that ‘threatens unity’ and the disclosure of confidential information.
- Some provisions of the CTA contradict the new Right to Information Act, which prohibits the punishment of whistleblowers who disclose information held by public authorities.
- The Act is broadly drafted and large number of offences which come under the Act, retains some provisions from PTA while merely adding new offenses.
Militarisation and release of lands in the Northern and Eastern provinces
Military occupation of land utilized by private citizens remains a concern in the Northern and Eastern provinces. Not only do large swathes of land still remain as High Security Zones (HSZ) and forces headquarters but the tri-forces have taken to operating businesses in these regions too. Several hotels in the North and East and operated and staffed by forces personnel, in operations that crowd out local business owners and residents of the area. The army also operates several rest stops and cafés along the A9 highway.
While there has been slow release of lands across the Northern province over the course of the year, a CPA report indicates how much is yet to be returned to civilians in terms of reparations and fulfilling promises of transitional justice.
Rights for plantation sector workers
A collective agreement was signed by Sri Lanka’s regional plantation companies and labour unions to increase the daily wage of estate workers to LKR 730. The marginal hike, came after thousands employed in tea estates stage a wide strike in September, one of the largest such movements from the industry in recent times.
CPA’s advocacy to obtain addresses for those living in the plantation sector ensured that 1500 families received addresses in the last year, a fundamental right which had been denied to them despite being inhabitants of the region for generations.
Urban development and displacement in Colombo
CPA has documented and advocated for communities in Colombo that were forcibly relocated by the Rajapaksa regime, following their story from their departure from their old homes to their lives in the new high-rise buildings that they were relocated to.
A recent report noted that, in less than three years of living in these new apartment complexes, residents experience a considerable deterioration in the quality of life, income mismatch leading to debt, a high expression of desire to move, mostly as a result of a disconnect from the built environment.
There has been no concrete effort on the part of the new government – which is continuing the activities of the previous regime’s Urban Regeneration Program (URP), with another 15,000 – 20,000 high-rise apartments being built at present – or the new management of the Urban Development Authority, to address the critical issues arising from the URP, whether they be related to the buildings, resident issues or even the provision of documents and information residents are entitled to, in their language of preference.
The National Anthem
A fundamental rights case challenging the legality of singing the National Anthem in the Tamil language at the Independence Day celebration on February 4, 2016 was dismissed by the Supreme Court.
CPA filed a petition dated 4th of March 2016 to intervene in the said case. CPA argued that since Tamil and Sinhala are both National and official languages and since the words of the Tamil translation of the national anthem were included in the constitution, singing the national anthem in Tamil at state functions did not violate any provisions in the constitution.
CPA has worked extensively on language rights, by way of legal advocacy and grassroots mechanisms in attempts to give equal prominence to both official languages in Sri Lanka.
Over the last few months, CPA and several other organisations raised concerns over statements made by and movements organised by extremists that are in favour of a Sinhala-Buddhist country, with special opposition against the Muslim communities being made in these statements. Galagodaththe Gnanasara Thero of the Bodu Bala Sena (BBS) recently threatened a ‘bloodbath’ if leader of Muslim organisation the Sri Lanka Thowheed Jama’ath (SLTJ) was not imprisoned. In addition to this, the remarks made by Ampitiye Sumana to a Tamil GS officer in the Batticaloa district went viral on social media due to the threats of violence and foul language directed at Tamil people. A new report highlights how Muslim and Christian minorities have experienced violence and threats across the island.
This behaviour has been increasingly recorded across various communities in Sri Lanka. While it is not exhibited by them solely, the tidal wave of evidence on social media and mainstream media coverage shows that it is mostly Buddhist monks who have expressed these in public forums.
Two CPA research reports have highlighted how social media forums, Facebook pages in these cases, quickly become politicised and subsequently, the relatively unshackled freedom of expression found in social media also invited unchecked expressions of hateful and defamatory material targeting minorities.
Abuse of power by law enforcement authorities
Five officers were arrested in connection with the fatal shooting of two students of the University of Jaffna as they rode by on a motorbike, yet the incident it opened up a larger conversation on the issue of police brutality and the impunity that police officers and law enforcement officers enjoy. The report of the Human Rights Commission of Sri Lanka to the United Nations Commission Against Torture released soon after exposed the routine torture carried out by police on witnesses and detainees in gruesome depth, detailing torture methods and the trauma suffered by victims.
Government representatives – including National Intelligence Chief DIG Sisira Mendis, former head of the Criminal Investigation Department and the Terrorist Investigation Department – were questioned by the independent experts about abductions, secret detention centres, torture in custody, custodial death and other rights violations.
UNCAT members asked the Sri Lankan delegation what safeguards were contained in the proposed Counter-Terrorism Act to prevent arbitrary arrest. The panel’s concluding remarks included several recommendations to the Government of Sri Lanka in terms of accountability for these issues and reparations for victims.
Article 16 and the reform of Muslim Personal Law
Women’s rights groups have been calling for the reform of the Muslim Marriage and Divorce Act (MMDA) for decades; these voices grew louder this year in line with the discussions around the new Constitution. The call for reform highlights that the Act condones several things that are not in the best interest of women and children who are subject to it, including child marriage, unequal proceedings of divorce between men and women and the lack of female inclusion in the Quazi courts that administer the law.
While a Cabinet Sub-committee has been appointed to look into these reforms, it has lead to a movement that is calling for the repeal of Article 16 of the Constitution, which states that ‘all existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter’. This provision places the Muslim Personal Law and all others similar to it above the Constitution, denying citizens subject to them of their fundamental right of equality. If Article 16 were to remain in its current form, it ensures that the Sri Lankan government can continue to ignore any violations of human and fundamental rights faced by citizens subject to these laws.
Sri Lanka’s journey forward remains unpredictable.
The Report of the Sub-committee on Fundamental Rights is significant because it provides recommendations for principles to be considered when formulating a fundamental rights chapter for the new Sri Lankan Constitution. If the drafters of the Bill adhere to these recommendations, it would allow for better protection of human rights for citizens of Sri Lanka. However, just the inclusion of these rights in the Constitution will not be adequate.
President Sirisena’s request to President-elect of the United States of America Donald Trump, for his assistance in freeing Sri Lankan troops from allegations of war crimes during the conflict, signals a retraction by the government of its promise to the UNHRC to investigate human rights violations. The leaders of our country must understand the importance of addressing such allegations as a vital step towards achieving meaningful reconciliation.